Bill 29 - Court Jurisdiction and Proceedings Transfer Act

BILL 29

Court Jurisdiction and Proceedings Transfer Act

His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART 1

DEFINITIONS

Definitions

1 The following definitions apply in this Act.

“extra-provincial court” means a court established in a state other than New Brunswick. (tribunal extraprovincial)

“New Brunswick court” means The Court of King’s Bench of New Brunswick, The Probate Court of New Brunswick or the Small Claims Court of New Brunswick. (tribunal du Nouveau-Brunswick)

“procedure” means a procedural step in a proceeding. (procédure)

“proceeding” means an action, suit, cause, matter or application and includes a procedure and a preliminary motion. (instance)

“state” means (État)

(a) Canada or a province or territory of Canada, or

(b) a foreign country or a subdivision of a foreign country.

“subject matter competence” means the aspects of a court’s jurisdiction that depend on factors other than those pertaining to the court’s territorial competence. (compétence matérielle)

“territorial competence” means the aspects of a court’s jurisdiction that depend on a connection between (compétence territoriale)

(a) the territory or legal system of the state in which the court is established, and

(b) a party to a proceeding in the court or the facts on which the proceeding is based.

PART 2

TERRITORIAL COMPETENCE OF
NEW BRUNSWICK COURTS

Definitions

2 The following definitions apply in this Part.

“consumer contract” means a contract under which goods or services are purchased for purposes other than use in the course of a trade, business or profession. (contrat de consommation)

“person” includes a state. (personne)

“plaintiff” means a person who commences a proceeding and includes a plaintiff by counterclaim or third party claim. (demandeur)

Territorial competence

3 The territorial competence of a New Brunswick court is to be determined solely in accordance with this Part.

Proceedings against a person

4 A New Brunswick court has territorial competence in a proceeding against a person only if

(a) the person is the plaintiff in another proceeding in the New Brunswick court to which the proceeding in question is a counterclaim,

(b) during the course of the proceeding, the person submits to the jurisdiction of the New Brunswick court,

(c) there is an agreement between the plaintiff and the person to the effect that the New Brunswick court has jurisdiction in the proceeding,

(d) the person is, at the time of the commencement of the proceeding, ordinarily resident in New Brunswick,

(e) the person is a mandatory party in a proceeding against another person in which the New Brunswick court has territorial competence, or

(f) there is a real and substantial connection between New Brunswick and the facts on which the proceeding is based.

Proceedings against a vessel

5 A New Brunswick court has territorial competence in a proceeding against a vessel if the vessel is served or arrested in New Brunswick.

Proceedings with no named defendant

6 A New Brunswick court has territorial competence in a proceeding that is not against a person or a vessel if there is a real and substantial connection between New Brunswick and the facts on which the proceeding is based.

Residual discretion

7 A New Brunswick court that under section 4 lacks territorial competence in a proceeding may hear the proceeding despite that section if the New Brunswick court is satisfied that

(a) there is no extra-provincial court in which the plaintiff can commence the proceeding, or

(b) the commencement of the proceeding in an extra-provincial court cannot reasonably be required.

Ordinary residence – corporation

8 For the purposes of this Part, a corporation is ordinarily resident in New Brunswick only if

(a) the corporation has, or is required by law to have, a registered office in New Brunswick,

(b) the corporation, according to law,

( i) has registered an address in New Brunswick at which process may be served generally, or

( ii) has nominated an agent in New Brunswick on whom process may be served generally,

(d) the corporation’s central management is exercised in New Brunswick.

Ordinary residence – partnership

9 For the purposes of this Part, a partnership is ordinarily resident in New Brunswick only if

(a) the partnership has, or is required by law to have, a registered office or business address in New Brunswick,

(b) the partnership has a place of business in New Brunswick, or

Ordinary residence – unincorporated association

10 For the purposes of this Part, an unincorporated association is ordinarily resident in New Brunswick only if

(a) an officer of the unincorporated association is ordinarily resident in New Brunswick, or

(b) the unincorporated association has an office or premises in New Brunswick for the purpose of conducting its activities.

Real and substantial connection

11 Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between New Brunswick and the facts on which a proceeding is based, a real and substantial connection between New Brunswick and those facts is presumed to exist if the proceeding

(a) is brought to enforce, assert, declare or determine proprietary or possessory rights or a security interest in movable or immovable property situated in New Brunswick,

(b) concerns the administration of the estate of a deceased person in relation to

( i) immovable property of the deceased person situated in New Brunswick, or

( ii) movable property, wherever situated, of the deceased person if, at the time of death, the person was ordinarily resident in New Brunswick,

( i) movable or immovable property situated in New Brunswick, or

( ii) movable property, wherever situated, of a deceased person who, at the time of death, was ordinarily resident in New Brunswick,

(d) is brought against a trustee in relation to the carrying out of a trust in any of the following circumstances:

( i) the trust assets include movable or immovable property situated in New Brunswick, and the relief claimed relates only to that property;

( ii) the trustee is ordinarily resident in New Brunswick;

( iii) the administration of the trust is principally carried out in New Brunswick; or

( iv) by the express terms of a trust document, the trust is governed by the law of New Brunswick,

(e) concerns contractual obligations, and

( i) the contractual obligations, to a substantial extent, were to be performed in New Brunswick,

( ii) by its express terms, the contract is governed by the law of New Brunswick, or

( iii) the contract is a consumer contract that resulted from a solicitation of business in New Brunswick by or on behalf of the seller,

(f) concerns restitutionary obligations that, to a substantial extent, arose in New Brunswick,

(g) concerns a tort committed in New Brunswick,

(h) concerns a business carried on in New Brunswick by the person against whom the proceeding is brought,

(i) is a claim for an injunction ordering a party to the proceeding to do or refrain from doing anything

( i) in New Brunswick, or

( ii) in relation to movable or immovable property situated in New Brunswick,

(j) is for a determination of the personal status or capacity of a person who is ordinarily resident in New Brunswick,

(k) is for enforcement of a judgment or an arbitral award made in or outside New Brunswick, or

(l) is for the recovery of taxes or other indebtedness and is brought by the Crown in right of New Brunswick or by a local government or other local authority in New Brunswick.

Exercise of territorial competence

12( 1) After considering the interests of the parties to a proceeding and the interests of justice, a New Brunswick court may decline to exercise its territorial competence in the proceeding on the ground that an extra-provincial court is a clearly more appropriate forum in which to hear the proceeding.

12( 2) Subject to subsections (3) to (5), a New Brunswick court, in deciding whether an extra-provincial court is a clearly more appropriate forum in which to hear the proceeding, shall consider all relevant information, including:

(a) the comparative convenience and expense to the parties and their witnesses of having the proceeding heard in the New Brunswick court or in an extra-provincial court;

(b) the law to be applied to issues in the proceeding;

(c) the existence of an agreement between the parties that designates a state where such a proceeding may be brought but does not exclude other states;

(d) the desirability of avoiding multiple proceedings or conflicting decisions in different courts;

(e) the enforcement of an eventual judgment; and

(f) the fair and efficient working of the Canadian legal system as a whole.

12( 3) If the parties to a proceeding have agreed that such a proceeding is to be brought exclusively in a state other than New Brunswick, the New Brunswick court shall decline to exercise its territorial competence unless strong cause is shown why the agreement should not be enforced.

12( 4) If the parties to a proceeding have agreed that such a proceeding is to be brought exclusively in New Brunswick, the New Brunswick court shall exercise its territorial competence unless strong cause is shown why the agreement should not be enforced.

12( 5) If a proceeding that is otherwise subject to subsection (3) or (4) concerns a consumer contract or an individual contract of employment, at the option of the consumer or the employee, as the case may be,

(a) subsections (3) and (4) do not apply, and

(b) the agreement that such a proceeding is to be brought exclusively in a designated state shall be deemed to be an agreement that designates a state where such a proceeding may be brought but does not exclude other states.

Conflict

13 If a provision of this Part is inconsistent or in conflict with a provision of any other Act of the Legislature or an Act of the Parliament of Canada that confers territorial competence on a New Brunswick court or denies territorial competence to a New Brunswick court, the provision of the other Act of the Legislature or the Act of the Parliament of Canada prevails.

PART 3

SUBJECT MATTER COMPETENCE OF
NEW BRUNSWICK COURTS

Immovable property outside New Brunswick

14( 1) A New Brunswick court lacks subject matter competence in a proceeding that is principally concerned with a question of the title to or the right to possession of immovable property situated outside New Brunswick.

14( 2) For greater certainty, subsection (1) does not deprive a New Brunswick court of subject matter competence in a proceeding that

(a) concerns trespass to or any other tort affecting immovable property situated outside New Brunswick, and

(b) is not principally concerned with a question of the title to or the right to possession of the immovable property.

14( 3) Despite subsection (1), a New Brunswick court has subject matter competence in a proceeding relating to immovable property situated outside New Brunswick if the proceeding concerns a contractual or equitable obligation that can be effectively enforced without the assistance of a court in the state where the immovable property is situated.

Conflict

15 If section 14 is inconsistent or in conflict with a provision of any other Act of the Legislature or an Act of the Parliament of Canada that confers subject matter competence on a New Brunswick court or denies subject matter competence to a New Brunswick court, the provision of the other Act of the Legislature or the Act of the Parliament of Canada prevails.

PART 4

TRANSFER OF A PROCEEDING

Definition of “Court of King’s Bench”

16 In this Part, “Court of King’s Bench” means The Court of King’s Bench of New Brunswick.

Transfer of a proceeding

17( 1) The Court of King’s Bench, in accordance with this Part, may

(a) transfer a proceeding to an extra-provincial court, or

(b) accept a transfer of a proceeding from an extra-provincial court.

17( 2) A power given under this Part to the Court of King’s Bench to transfer a proceeding to an extra-provincial court includes the power to transfer part of the proceeding to the extra-provincial court.

17( 3) A power given under this Part to the Court of King’s Bench to accept a transfer of a proceeding from an extra-provincial court includes the power to accept part of the proceeding from the extra-provincial court.

17( 4) If anything relating to a transfer of a proceeding is or ought to be done in the Court of King’s Bench or the Court of Appeal of New Brunswick, the transfer is governed by this Part.

17( 5) If anything relating to a transfer of a proceeding is or ought to be done in an extra-provincial court, the Court of King’s Bench, despite any differences between this Part and the rules applicable in the extra-provincial court, may transfer or accept a transfer of the proceeding if the Court of King’s Bench is satisfied that the differences do not

(a) impair the effectiveness of the transfer, or

(b) inhibit the fair and proper conduct of the proceeding.

Grounds for a transfer order

18( 1) The Court of King’s Bench, on application of a party to a proceeding or on its own motion, may, by order, request an extra-provincial court to accept a transfer of a proceeding in which the Court of King’s Bench has both territorial competence and subject matter competence if

(a) the Court of King’s Bench is satisfied that the extra-provincial court has subject matter competence in the proceeding, and

(b) under section 12, the Court of King’s Bench declines to exercise its territorial competence in the proceeding in favour of the extra-provincial court.

18( 2) The Court of King’s Bench, on application of a party to a proceeding or on its own motion, may, by order, request an extra-provincial court to accept a transfer of a proceeding in which the Court of King’s Bench lacks territorial competence or subject matter competence if the Court of King’s Bench is satisfied that the extra-provincial court has both territorial competence and subject matter competence in the proceeding.

18( 3) In deciding whether an extra-provincial court has territorial competence or subject matter competence in a proceeding, the Court of King’s Bench shall apply the laws of the state in which the extra-provincial court is established.

Transfer orders

19( 1) The Court of King’s Bench shall provide reasons for making an order requesting an extra-provincial court to accept a transfer of a proceeding.

19( 2) An order may

(a) impose conditions precedent to the transfer,

(b) contain terms concerning the conduct of the proceeding, and

19( 3) On or after making an order requesting an extra-provincial court to accept a transfer of a proceeding, the Court of King’s Bench may, on its own motion or at the request of the extra-provincial court,

(a) send to the extra-provincial court relevant portions of the record to assist the extra-provincial court in deciding whether to accept the transfer or to supplement material previously sent by the Court of King’s Bench in support of the order, or

(b) by order, rescind or vary a term of the order requesting the extra-provincial court to accept a transfer of the proceeding.

Discretion to accept or refuse to accept a transfer

20( 1) If an extra-provincial court makes an order requesting the Court of King’s Bench to accept a transfer of a proceeding, a party to the proceeding may apply to the Court of King’s Bench for an order accepting or refusing to accept the transfer of the proceeding and the application shall be accompanied by a copy of the order of the extra-provincial court.

20( 2) The Court of King’s Bench may, by order,

(a) accept the transfer, subject to subsection (3), if the following requirements are met:

( i) the Court of King’s Bench or the extra-provincial court has territorial competence in the proceeding; and

( ii) the Court of King’s Bench has subject matter competence in the proceeding, or

(b) refuse to accept the transfer for any reason that the Court of King’s Bench considers just, regardless of whether the requirements set out in paragraph (a) have been met.

20( 3) The Court of King’s Bench may not make an order accepting the transfer of a proceeding if a condition precedent to the transfer imposed by the extra-provincial court has not been fulfilled.

20( 4) The Court of King’s Bench shall provide reasons for making an order refusing to accept the transfer of a proceeding.

When transfer takes effect

21( 1) A transfer of a proceeding from the Court of King’s Bench to an extra-provincial court takes effect for all purposes of the law of New Brunswick when an order made by the extra-provincial court accepting the transfer is filed in the Court of King’s Bench.

21( 2) A transfer of a proceeding from an extra-provincial court to the Court of King’s Bench takes effect for all purposes of the law of New Brunswick when an order made by the Court of King’s Bench accepting the transfer is filed in the extra-provincial court.

Transfer to extra-provincial court

22( 1) On a transfer of a proceeding from the Court of King’s Bench to an extra-provincial court taking effect

(a) the Court of King’s Bench shall send relevant portions of the record, if not sent previously, to the extra-provincial court, and

(b) subject to subsections (2) and (3), the proceeding continues in the extra-provincial court.

22( 2) After the transfer of a proceeding from the Court of King’s Bench to an extra-provincial court takes effect, the Court of King’s Bench may make an order with respect to a procedure that was pending in the proceeding at the time of the transfer only if

(a) it is unreasonable or impracticable for a party to the proceeding to apply to the extra-provincial court for the order, and

(b) the order is necessary for the fair and proper conduct of the proceeding in the extra-provincial court.

22( 3) After the transfer of a proceeding from the Court of King’s Bench to an extra-provincial court takes effect, the Court of King’s Bench may discharge or vary an order made in the proceeding before the transfer took effect only if the extra-provincial court lacks territorial competence to discharge or vary the order.

Transfer to Court of King’s Bench

23( 1) On a transfer of a proceeding from an extra-provincial court to the Court of King’s Bench taking effect, the proceeding continues in the Court of King’s Bench.

23( 2) Any procedure completed in a proceeding in an extra-provincial court before the transfer of the proceeding to the Court of King’s Bench takes effect has the same effect in the Court of King’s Bench as in the extra-provincial court unless the Court of King’s Bench orders otherwise.

23( 3) If a procedure is pending in a proceeding in an extra-provincial court at the time the transfer of the proceeding to the Court of King’s Bench takes effect, the procedure shall be completed in the Court of King’s Bench in accordance with the rules applicable in the extra-provincial court, measuring applicable time limits as if the procedure had been commenced ten days after the transfer took effect, unless the Court of King’s Bench orders otherwise.

23( 4) After the transfer of a proceeding from an extra-provincial court to the Court of King’s Bench takes effect, the Court of King’s Bench may discharge or vary an order made in the proceeding by the extra-provincial court.

23( 5) An order of the extra-provincial court that is in force at the time the transfer of the proceeding to the Court of King’s Bench takes effect remains in force after the transfer until the order is discharged or varied by

(a) the extra-provincial court if the Court of King’s Bench lacks territorial competence to discharge or vary the order, or

(b) the Court of King’s Bench in any other case.

Return of proceeding after transfer

24( 1) After the transfer of a proceeding from an extra-provincial court to the Court of King’s Bench takes effect, the Court of King’s Bench shall order the return of the proceeding to the extra-provincial court if

(a) the terms of the transfer provide for the return, or

(b) after further consideration, the Court of King’s Bench determines that the requirements for accepting a transfer set out in paragraph 20(2)(a) are not met.

24( 2) If the extra-provincial court to which the Court of King’s Bench has transferred a proceeding orders its return to the Court of King’s Bench, the Court of King’s Bench shall accept the return.

24( 3) A return of a proceeding from an extra-provincial court to the Court of King’s Bench takes effect for all purposes of the law of New Brunswick when an order made by the extra-provincial court returning the proceeding is filed in the Court of King’s Bench.

24( 4) A return of a proceeding from the Court of King’s Bench to an extra-provincial court takes effect for all purposes of the law of New Brunswick when an order made by the Court of King’s Bench returning the proceeding is filed in the extra-provincial court.

24( 5) On a return of a proceeding from an extra-provincial court to the Court of King’s Bench taking effect, the proceeding continues in the Court of King’s Bench.

Appeals

25( 1) After the transfer of a proceeding from an extra-provincial court to the Court of King’s Bench takes effect, an order of the extra-provincial court, except the order requesting the transfer, may be appealed in New Brunswick with leave of The Court of Appeal of New Brunswick as if the order had been made by the Court of King’s Bench.

25( 2) A decision of an extra-provincial court to accept the transfer of a proceeding from the Court of King’s Bench may not be appealed in New Brunswick.

25( 3) If, at the time the transfer of a proceeding from the Court of King’s Bench to an extra-provincial court takes effect, an appeal is pending in New Brunswick from an order of the Court of King’s Bench, The Court of Appeal of New Brunswick may conclude the appeal only if

(a) it is unreasonable or impracticable for the appeal to be recommenced in the state of the extra-provincial court, and

(b) a resolution of the appeal is necessary for the fair and proper conduct of the proceeding in the extra-provincial court.

Departure from a term of transfer order

26 After the transfer of a proceeding from an extra-provincial court to the Court of King’s Bench takes effect, the Court of King’s Bench may depart from terms specified by the extra-provincial court in the transfer order if it is just and reasonable to do so.

Limitation period

27( 1) In a proceeding transferred from an extra-provincial court to the Court of King’s Bench, the Court of King’s Bench shall not hold a claim barred because of a limitation period under an Act of the Legislature if

(a) the claim would not be barred by a limitation period applicable in the extra-provincial court, and

(b) at the time the transfer took effect, the extra-provincial court had both territorial competence and subject matter competence in the proceeding.

27( 2) After the transfer of a proceeding from an extra-provincial court to the Court of King’s Bench takes effect, the Court of King’s Bench shall treat a procedure commenced on a certain date in the proceeding in the extra-provincial court as if the procedure had been commenced in the Court of King’s Bench on that date.

Commencement

28 This Act or any provision of this Act comes into force on a day or days to be fixed by proclamation.